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In an action pursued by Edward Edgar, tutor testamentar to —— Edgar, his brother's son, against James Inglis, merchant, and Janet Somervill, his spouse, for exhibition of the said pupil, to the effect he may be delivered to the pursuer, his tutor, to be kept, guided, and brought up, during the time of his said office, it was excepted, That the pupil could not be delivered to the pursuer, because he was to succeed to him. It was answered, That there was another brother of the pupil's father in life, who would be preferred to the pursuer. It was duplied, That this pursuer, since the decease of his brother, father to the pupil, had contracted with his other brother, and received from him a disposition, assignation, and translation, of all right that he could have or succeed to by decease of his said umquhile brother, or by the decease of this pupil, his son, either heritage or moveables; and so being, by that means, nearest to succeed, and having made pactum de futura viventi successione, he was suspectus tutor, at the least could not have the custody of the pupil's person. Which exception and reply were found relevant.
